RAJARTHINAM (M.) Vs. CASTROL, LTD. MADRAS AND ANOTHER

JUDGEMENT

(1.) In this writ petition, the petitioner has prayed for the issue of a writ of certiorari calling for the records in Industrial Dispute No. 137 of 1980, on the file of the second respondent herein and to quash the award, dated 29 April 1983, upholding the non-employment of the petitioner on the ground that he had been rightly retrenched.

(2.) By an order, dated 30 March 1972, the petitioner was appointed as a driver at the warehouse of the first respondent at Tondiarpet with effect from 1 April 1972. Subsequently, on 31 Dec. 1973, the appointment of the petitioner was confirmed with effect from 1 Oct. 1973, and the other service conditions as applicable to all the employees of the first respondent were made applicable to the petitioner also. On 12 Oct. 1978, the first respondent sold the only vehicle bearing registration No. TMC 5735 in respect of which the petitioner was appointed as a driver. By a letter, dated 24 April 1979, the first respondent intimated to the petitioner the sale of the vehicle bearing registration No. TMC 5735 and the decision of the first respondent to retrench the petitioner from its services with effect from 30 April 1979. That letter also referred to the sending of a months wages in lieu of notice and retrenchment compensation totalling to Rs. 963 though the amount was not actually so sent. This letter was signed by the Regional Manager (South) of the first respondent. In response to this letter sent by the first respondent on 24 April 1979, the petitioner addressed a communication, dated 2 May 1979, to the first respondent to the effect that though the van in question had been sold in Oct. 1978, the petitioner had been doing the work of a peon at the factory and that there was no reason whatever to retrench him at all. Alternatively, the petitioner stated that as in the case of two other persons, namely, Peter and Om Prakash, who had been given other jobs, the petitioner also should be provided with some other work. To this, the first respondent sent a letter, dated 8 May 1979, wherein it reiterated the necessity for the retrenchment of the petitioner and further stated that by some mistake the retrenchment compensation had not been sent earlier and, therefore, a cheque for Rs. 3,371 towards retrenchment compensation for the number of years of service put in by the petitioner was being sent. It was also pointed out in that letter that in view of the earlier technical omission on the part of the first respondent in not sending the retrenchment compensation, as stated in the letter, dated 24 April 1979, the services of the petitioner were treated as having been retrenched with effect from 8 May 1979, instead of 30 April 1979. The claim of the petitioner that as in the case of Peter and Om Prakash he should also have been provided with some other work was refuted by the first respondent on the ground that the petitioner cannot be retained as a peon when there is no justification for such a post and the cases referred to by the petitioner were not comparable. This letter was signed by one Sri E. Hariharan, for Regional Manager (South) on behalf of the first respondent. Later, the first respondent informed the Secretary, Labour Department, Government of Tamil Nadu, the Conciliation Officer, the Commissioner of Labour, Madras, and the Employment Officer, Madras, about the retrenchment of the petitioner and stated that such retrenchment was necessitated owing to the decision of the management to sell its only van bearing registration No, TMC 5735, for which the petitioner was the only driver. Thereafter, the petitioner, on 11 May 1979, raised the issue of his non-employment before the concerned Labour Officer and the petitioner stated that there was no justification whatever for the retrenchment and also took the stand that the authority who issued the retrenchment order, dated 8 May 1979, had no powers to pass an order of retrenchment. A copy of this representation having been sent to the first respondent, it forwarded its reply, dated 11 June 1979. Therein, the first respondent set out the reason for the retrenchment of the petitioner and further pointed out that as there was no vacancy for the post of a peon, the petitioner could not be provided with work as a peon, as in the case of Peter. Adverting to the provision of work for Om Prakash, the first respondent stated that he had been entertained as a peon, though appointed as a temporary watchman and this was done with a view to alleviate the difficulties of the temporary watchman instead of discharging him, though the first respondent was not in law bound to do so. It was also further pointed out that the categories of driver and peon involve different duties and responsibilities and as there was no vacancy in the post of peon, the petitioner could not be provided with other work. The retrenchment order, dated 8 May 1979, signed by Sri E. Hariharan was stated to have been properly passed by a person, clothed with authority to do so. A rejoinder, dated 13 June 1979, was sent by the petitioner wherein it was claimed by him that the sale of the van could not be the reason for his retrenchment, especially when he had continued in service after such sale for a period of nearly six months and that during that period he had been working in the establishment of the first respondent. The petitioner also referred to the employment of Peter and Om Prakash as peons and stated that with a view to absorb the petitioner also as a peon, the stores superintendent had asked for the sanctioning of a peon, but that the first respondent did not accede to that, though the business of the first respondent was very good. This evoked a reply, dated 3 July 1979, from the first respondent to the effect that at no stage the petitioner was ever required to perform the duties of a peon and if he had done some work on some occasions, it was at the personal requests of the officers for which he had been paid for separately by them and that had nothing whatever to do with the first respondent as such. Subsequently, after some more correspondence followed, the Government of Tamil Nadu, by G. O. Ms. No. 774, Labour and Employment Department, dated 1 April 1980, referred the issue of non-employment of the petitioner for adjudication by the Labour Court in industrial Dispute No. 137 of 1980.

(3.) In the claim petition also, the petitioner substantially reiterated that there was no justification whatever for his retrenchment and that he had been treated differently from Peter and Om Prakash, that the retrenchment order, dated 8 May 1979, was defective and that he had continued to work discharging the duties of a peon at least for six months and, therefore, his non-employment should be held illegal and a direction should be given to the first respondent to reinstate the petitioner in service. In the counter statement. tiled by the first respondent, it set out the circumstances leading to the retrenchment of the petitioner and stated that since the petitioner was entrusted with the duties of driving the van and that van was sold, there was no other vehicle to be driven by the petitioner and necessarily the petitioner had to be retrenched from service. Referring to the letter, dated 8 May 1979, the first respondent maintained that it was properly passed by the authority competent to do so and the retrenchment had also been carried out in accordance with the provisions of the Industrial Disputes Act. Adverting to the employment of Peter and Om Prakash, it was stated by the first respondent that the circumstances that they had been appointed as peons would not give any right to the petitioner to claim that he should also be employed as a peon, as the categories were different and there was no work for a driver and there was no vacancy even for the post of a peon in the establishment of the first respondent. It was pointed out that at the relevant time, Sri E. Hariharan was the Regional Manager and, therefore, had the competence to pass the order of retrenchment. The claim of the petitioner that he was working as a peon even after the sale of the van was disputed by the first respondent on the ground that such work as was done by him was in response to personal requests made in that regard by one or two of the officers, in respect of which they had paid the petitioner for personal services so rendered and the first respondent-management did not have anything whatever to do with the employment of the petitioner as a peon. The first respondent also put forth the plea that as the petitioner was employed only as a driver and as the categories of driver and peon are different, the question of offering employment to the petitioner as a peon did not arise. The first respondent, therefore, pleaded that no case for setting aside the order of retrenchment and reinstating the petitioner was made out.